11. ANÁLISIS Y PRESENTACIÓN DE RESULTADOS
11.1 DESCRIPCIÓN DE LAS TÉCNICAS QUE SE OFRECEN PARA PREVENIR
client even after the attorney-client relation is terminated.
Accordingly, the relation between A and C is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones.
Mercado v. Vitriolo (p.286)
It is the glory of the legal profession that its fidelity to its client can be depend on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer’s tongue is tied from ever disclosing it.
Q: What are the factors essential to establish the existence of the privilege?
A:
1. Where legal advice of any kind is sought,
2. From a professional legal adviser in his capacity as such,
3. The communications relating to that purpose, 4. Made in confidence,
5. By the client,
6. Are at his instance permanently protected, 7. From disclosure by himself or by the legal advisor, 8. Except the protection be waived.
Q: Are matters disclosed by a prospective client to a lawyer protected by the rule?
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A: Yes, even if the prospective client does not thereafter retain the lawyer or the latter declines the employment.
Q: Why is such covered by the rule?
A: To make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client.
NOTE: A communication from a prospective client other than on account of the prospective lawyer-client relation is not privileged (Pfeider v. Palanca, 35 SCRA 75).
Q: What is a confidential communication?
A: It refers to information transmitter by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.
Q: Is a compromise agreement prepared by a lawyer pursuant to the instruction of his client and delivered to the opposing party, an offer by client to his counsel for settlement, or a document given by a client to his lawyer not in his professional capacity covered by the confidentiality rule?
A: No, the element of confidentiality not being present.
Physician-Patient Privilege (Rule 130)
Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:
(c)A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
Q: Do this privilege apply to criminal case?
A: It applies to civil cases, whether the patient is a party or not. The phraseology of the rule implies that the privilege cannot be claimed in a criminal case presumably because the interest of the public in criminal prosecution shall be deemed more important than the secrecy of the communication.
Q: What is the purpose of the privilege?
A: To encourage the patient to freely disclose all the matters which may aid in the diagnosis in the treatment of a disease or an injury. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition (Falkinburg v. Prudential Insurance, Co.).
It is designed to promote the health and not the truth. The patient is the person to be encouraged and he is the holder of the privilege (Metropolitan Life and Insurance Co v.
Kauffman).
Q: What are the kinds of information which are prohibited from disclosure?
A:
1. Any advice given to the client 2. Any treatment given to the client
3. Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity
4. That the information sought to be disclosed would tend to blacken the reputation of the patient.
Q: Does the rule require that the relationship be a result of a contractual relationship?
A: No. It could be a result of a quasi-contractual relationship as when the patient is seriously ill and the physician treats him even if he is not in a condition to give his consent as in the situation described in Art. 2167 of the NCC.
Art. 2167 of the NCC
Q: Are the results of the autopsy deemed covered by the privilege?
A: No, autopsies are not intended for treatment.
Q: When can it be said that the physician is acting in a professional capacity?
A: When he attends to the patient for either curative or preventive treatment.
Q: Does the privilege survive the death of the patient?
A: Yes. Death does not permit the living to impair the deceased’s name by disclosing communications held confidential by law (Westover v. Aetna Life Ins. Co.).
Q: May the privilege be waived?
A: Yes, either expressly or impliedly. When the patient answers questions on cross on matters which are supposed to be privileged, the waiver exists. Also, when there is
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disclosure by the patient of the information, there is necessarily a waiver.
Q: Can there be a waiver by operation of law?
A: Yes. Under Rule 28 of the Rules of Court, the court in which the action is pending may in its discretion order a party to submit to a physical or mental examination. This happens when the mental or physical condition of a party is in dispute.
The party examined may request a report of the examination.
By doing so, he waives any privilege he may have.
Priest/Minister-Penitent Privilege (Rule 130)
Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:
(d)A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;
Q: Who holds the privilege?
A: The person making the confession holds the privilege and the priest or minister hearing the confession in his professional capacity is prohibited from making a disclosure of the confession without the consent of the person confessing.
Q: What is the scope of the privilege?
A: It also covers not only a confession made by the penitent and any advice given by the minister or priest. It must have been given pursuant to the course of the discipline of the denomination or sect to which the minister or priest belongs.
Thus, the priest must be duly ordained or consecrated by his sect.
Q: Are all kinds of confession covered?
A: No, the communication must be made pursuant to confessions of sins. The rule states any advice given by him in his professional character or in a spiritual capacity.
Q: When a penitent discusses business arrangements with the priest, is this covered by the privilege?
a: No.
Privileged Communications to Public Officers (Rule 130)
Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:
(e)A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)
Q: When is the communication privileged?
A: When the court finds that the disclosure would adversely affect the public interest. It is in the interest of the public that is sought to be protected by the rule.
Hence, the disclosure or non-disclosure is not dependent on the will of the officer but on the determination by a competent court.
Q: When is the privileged applicable?
A: It can only be invoked not only during the term of the office of the public officer but also after.
NOTE: National security and state secrets are confidential and a court will most likely uphold the privilege.
Executive Privilege: Presidential communications privilege
Q: What is the origin of the executive privilege?
A: It originated in the case Senate of the Philippines v. Ermita (488 SCRA 1).
Q: What is “executive privilege”?
A: It is the power of the government to withhold information from the public, the courts, and the Congress.
NOTE: It was originally used in Almonte v. Vasquez (244 SCRA 286). The court acknowledged that there are certain types of information which the government may withhold from the public like military, diplomatic, and national security secrets.
Q: What is the basis of the privilege?
A: It is rules that the President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.
Q: What are the matters involving state secrets?
A:
1. Military 2. Diplomatic
3. Other national security matters
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NOTE: The right to information does not also extend to presidential conversations, correspondences, and discussions in closed-door cabinet meetings.
Executive Order 464
1. Conversation and correspondences between the President and the public official covered by the EO 2. Military, Diplomatic, Other national security matters
which in the interest of national security should not be divulged
3. Information between inter-government agencies prior to the confusion of treaties and executive agreements 4. Discussions in closed-door cabinet meetings 5. Matters affecting national security and public order Q: Who are covered by the EO?
A:
1. Senior officials of executive departments who in the judgment of the department heads are covered by the Exec. privilege
2. General and flag officers of the AFP and such other officers who in the judgment of the Chief of Staff are covered by the Exec. Privilege
3. PNP officers with rank of chief superintendent or higher and such other officers who, in the judgment of the Chief of PNP are covered by the Exec. Privilege.
4. Senior national security officials who in the judgment of the National Security Adviser are covered by the Exec.
Privilege
5. Such other officers as may be determined by the President.
Q: What will be secured to disclose the information?
A: It requires that all public officials enumerated above shall have to secure prior consent of the President prior to appearing before the House of Congress to give effect to the purpose of the EO.
Q: When the Congress exercises its powers of judicial inquiry, are the department heads exempt by the mere fact that they are department heads?
A: No, only one executive official may be exempted from the power of inquiry of Congress—the President upon whom the executive power is vested is beyond the reach of Congress except through the power of impeachment.
Section 7, Art. III of the Bill of Rights xxx
Q: What matters may be disclosed in relation to the right to information on matters of public concern?
A: The standard to be employed in determining whether there is a sufficient interest in favor of disclosure is the strong
“sufficient showing of need” which must be shown whether that party is Congress or a private citizen.
When the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that the information is vital, not simply for the satisfaction of its curiosity but for its ability to effectively and reasonably participate in social, political and economic decision-making.
See:
Chavez v. PCGG, 384 SCRA 152
Akbayan v. A quino, 2008
Neri v. Senate Committee on Accountability of Public Officers and Investigations, 2008
Q: What are the elements of presidential communications privilege as mentioned under U.S. v. Nixon?
A:
1. The protected communications must relate to a quintessential and non-delegable presidential power 2. The communication must be authored or solicited and
received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President
3. The Presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority.
Q: According to Chief Justice Puno, what are the 2 standards which must be met to show specific need for the information on the part of the branch of the government seeking its disclosure?
A:
1. Evidentiary 2. Constitutional
Privileged communications under the Rules on electronic evidence
Sec. 3 of the Rules on electronic evidence
SEC. 3. Privileged communication. – The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document.
Parental and Filial Privilege (Rule 130)
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Sec. 25.Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a)
Q: What are the 2 privileges embodied under the above provision?
A:
1. Parental privilege rule 2. Filial privilege rule
Q: What is parental privilege rule?
A: A parent cannot be compelled to testify against his child or direct descendants.
Q: What is filial privilege?
A: A child may not be compelled to testify against his parents or direct ascendants.
Q: May the person voluntarily testify against his parents or children?
A: Yes.
Q: What is the scope of this rule?
A: It applies to both criminal and civil cases since the rule does not make any distinction.
Art. 215 of the Family Code
Q: Under the F.C. no descendant shall be compelled to testify against his parents and grandparents. What are the exceptions?
A:
1. When such testimony is indispensable in a crime committed against said descendant
2. In a crime committed by one parent against the other (Art. 215, Family Code)
Other privileged communications not found in the Rules of Court (Rule 130)
Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:
(a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;
(b)An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;
(c)A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d)A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;
(e)A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)
Q: What are the different types of disqualifications by reason of privilege communication?
A:
1. Communication between husband and wife;
2. Communication between attorney and client;
3. Communication between physician and patient;
4. Communication between priest and patient; and 5. Public officers and public interest
Others:
1. Editors may not be compelled to disclose the source of published news;
2. Voters may not be compelled to disclose for whom they voted;
3. Trade secrets;
4. Information contained in tax census returns; and 5. Bank deposits.
6. Under Art. 233 of Labor Code, information and statements made at the conciliation proceedings shall be treated as confidential;
7. According to the Anti-Money Laundering Law (Sec.6), institutions covered by the law and its officers and employees who communicate a suspicious transaction to the AMLC, are barred from disclosing the fact of such report to other persons.
C. Examination of Witness
Open Court examination
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SECTION 1.Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a)
The Rule provides for the examination of the witness in open court and unless the question calls for a different mode, the answer of the witness shall be given orally. This allows the court to observe the demeanor of the witness and also allows the adverse party to cross-examine the witness.
Q: What are those testimonies which need not be given in open court?
A:
1. Under the Rules of Summary Procedure, the affidavits of the parties shall constitute the direct testimonies of the witnesses who executed the same (Sec.15);
2. In civil cases, the parties are required to submit the affidavits of their witnesses and other pieces of evidence on the factual issues, together with their position papers, setting forth the law and facts relied upon (Sec.9);
3. Depositions need not be taken in open court. They may also be taken before a notary public or before any person authorized to administer oaths;
4. In criminal case, either party may utilize the testimony of a witness who is deceased, out of the country, or one who is unavailable or unable to testify despite the exercise of due diligence, even if the testimony was one used in another case or proceeding, judicial or administrative, provided the said proceeding involved the same parties and subject matter and the adverse party had the opportunity to cross-examine the witness (Sec. 1(f), Rule 115).
Oath or affirmation
The witness must take either an oath or an affirmation but the option to take an oath or affirmation is given to the witness and not to the court.
Q: What is an oath?
A: It is an outward pledge made under an immediate sense of responsibility to God or a solemn appeal to the Supreme Being in attestation of the truth of some statement.
Q: What is an affirmation?
A: It is a substitute for an oath and is a solemn and formal declaration that the witness will tell the truth.
A: It is a substitute for an oath and is a solemn and formal declaration that the witness will tell the truth.